1. A public nuisance is an unreasonable interference with a right common to the general
public, such as a condition dangerous to health, offensive to community moral
standards, or unlawfully obstructing the public in the free use of public property.

2. Where there is an obstruction across a public right-of-way which obstructs the travel
of an individual, the obstruction is a nuisance per se and the affected individual may
remove the obstruction by way of abatement.

3. It is the duty of the board of county commissioners of each county to maintain its
county roads along only the true course of such road as originally laid out or
subsequently officially altered and, when necessary, to cause the county surveyor to
take such corrective action as may be necessary to maintain the true course of the
road, keep the road in repair, and remove or cause to be removed all obstacles that
may be found thereon.

4. By statute, the county engineer or township trustee is charged with maintaining a
county road and shall keep the county roads in repair and remove or cause to be
removed all obstructions that may be found thereon.

5. A county has no statutory authority to informally designate others as its agent to
maintain county roads.

Thomas J. Drees, county attorney, argued the cause, and Carla J.
Stovall, attorney general, was with him
on the brief for appellant.

Bernard T. Giefer, of Shepherd & Giefer, of WaKeeney, argued the
cause, and was on the brief for
appellee.

The opinion of the court was delivered by

LOCKETT, J.: The State appeals the district court's dismissal of two counts of
criminal damage to property against a defendant who mowed abutting landowners' wheat
planted on a low maintenance county road. The district court found that wheat growing on
a public road was an obstruction on the public right-of-way.

Richard Carl Deines was charged with two counts of misdemeanor criminal
damage to
property. The State's complaint alleged that Deines damaged the wheat fields of Leary
Johnson and Robert Hafliger, landowners whose properties abutted a county road right-of-way.
The damage resulted when Deines, without authorization from the owners of the
wheat or the county, mowed the road right-of-way to clear wheat that had been planted by
Johnson and Hafliger.

Prior to trial, Deines moved to dismiss the case. Deines asserted that because all the
wheat mowed was within the county road right-of-way, the wheat was an unlawful
obstruction upon the right-of-way; therefore, the mowing of the wheat was a lawful act.

In a memorandum decision, the district judge noted that an essential element of the
crime of criminal damage is that another person have a property interest in the property
damaged. The judge found that an individual does not have a property interest in a crop
grown on a public right-of-way; a growing crop upon a public right-of-way is a purpresture,
i.e., an encroachment upon public rights, an illegal easement by appropriation to private use
of that which belongs to the public, and a nuisance per se. The judge concluded as a matter of
law that Deines' mowing of another's wheat growing upon the public right-of-way did not
constitute the crime of criminal damage to property and dismissed the charges. The State
appealed pursuant to K.S.A. 22-3602(b)(1).

Counties are granted the same right to self-rule under K.S.A. 19-101a that cities enjoy
under the Kansas Constitution. The State asserts that counties are entitled to regulate what
obstructions may be placed in public streets and roadways within the county. The State
contends that Trego County (County) exercised its police powers and by an informal
agreement allowed abutting landowners to plant crops on the right-of-way so the County
would not be required to maintain certain "low maintenance" roads. The State argues the
County's use of its police power to maintain public roads in this manner was granted by the
legislature when the legislature granted counties self-rule. Without citing any authority, the
State argues that obstructions such as growing wheat upon the road may be permitted by the
County; therefore, the district court acted outside of its authority when determining that the
County could not under an informal agreement permit planting of wheat by the abutting
landowners upon the county road right-of-way.

The State asserts the County's use of its police power to allow the planting of wheat
in the right-of-way met the requirements set forth in Stauberv. City of
Elwood, 3 Kan. App.
2d 341, 594 P.2d 1115 rev. denied 226 Kan. 793 (1979). In Stauber, the
City of Elwood,
Kansas, granted permits for private individuals or private corporations to erect signs on
public streets. The Stauber court observed that before a city may authorize the use of
the
public right-of-way for private purposes there must be a clear showing that the primary use of
the right-of-way will benefit the public and any private use must be incidental to the public
purpose. Such private use need not be prohibited merely because private persons might
derive monetary or other benefits therefrom. 3 Kan. App. 2d at 346. The Stauber
court
concluded even though the private signs gave directions to the public traveling upon the
public roads, permitting private parties to erect advertising signs on public property was not a
proper exercise of police power by a city.

Specifically, the State asserts that the County's primary purpose in allowing the
planting of wheat on the right-of-way was to maintain the roadway for public use. The State
concludes that if it were not for the agreement between the County and the abutting
landowners, 64 miles of the County's "low maintenance" roads would be overgrown with
wild vegetation and would be impassible. The State asserts if the district court's ruling is
correct, the County will be required to maintain the 64 miles of "low maintenance" roads.

The issue dispositive of this criminal case is whether it is a defense to a charge of
criminal damage to property that the property of another which is claimed to have been
damaged was an obstruction upon a public right-of-way. The issue is a question of law. An
appellate court's standard of review on questions of law is unlimited. Hamilton v. State Farm
Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).

REMOVAL OF AN OBSTRUCTION ON A PUBLIC RIGHT-OF-WAY

The case law in this area dates back to the late 1800's, and most of the law is derived
from civil actions for damages brought by owners of land abutting public roads. In Williams
v. Fink, 18 Wis. 265 (1864), the Wisconsin Supreme Court considered a trespass to the
close.
In that case, the defendant's threshing machine was stuck in the public road and obstructed
traffic. The defendant took down his neighbor's fence to allow a team to pass upon the
neighbor's land. The team drove across the neighbor's enclosed field and caused damage to
the crops. The landowner sued the defendant for the damage to the crops. The defendant
claimed:

"[W]hen a highway is unlawfully obstructed, any person who wants to use it [the public
road] may
remove the obstruction, and may even enter upon the land of the party erecting or continuing the
obstruction, for the purpose of removing it, doing as little damage as possible." 18 Wis. at 267.

The Wisconsin court acknowledged and approved the asserted general principle of law. It
then held that the defendant could not escape liability based upon the principle because the
defendant's own threshing machine blocked the highway and created the impasse which
necessitated the removal of the fence for the passing team.

In Larson v. Furlong, 50 Wis. 681, 8 N.W. 1 (1881), the Wisconsin court
considered
whether the defendant had the right to remove a dock constructed by the plaintiff in a
harbor. The defendant not only removed the dock, the defendant also converted the
plaintiff's construction materials to his own use. The court held that a private individual has
no right to abate a nuisance unless the nuisance obstructs his individual right. The court
further stated that the right to abate a private nuisance is limited to the mere abatement of the
nuisance. 50 Wis. at 690. The court stated:

"The property of a man does not become outlawed because he may have placed it where it
becomes a
public or a private nuisance. If he has so placed his property that it becomes a private nuisance,
he
subjects it to the hazard of being injured by the aggrieved party to the extent necessary to remove
the
nuisance; but he does not thereby authorize the person injured to convert the property to his own
use.
If an individual should leave his wagon or other farming implements in the highway, or should pile
his
wood within its bounds, so that they become an obstruction to travel thereon, any one hindered or
obstructed in traveling such highway might lawfully remove them out of the highway; but we
think he
would not be justified in taking them away and converting them to his own use. So, if the owner
of a
boat or raft of logs should anchor them in a navigable river, so as to obstruct the passage of other
boats
or rafts, the owners of such other boats would have the right to remove the obstructing boats or
rafts,
so as to enable them to navigate the river with their own, but they would not be justified in taking
possession of the obstructing boat or raft and converting it to their own use." 50 Wis. at 690-91.

A few years later, the Wisconsin court revisited the issue in Godsell v.
Fleming, 59 Wis.
52, 17 N.W. 679 (1883). In that case, the plaintiffs erected a shed which encroached upon the
public highway but did not interfere with the use of the highway by the public. The shed
was constructed to house the plaintiffs' horses while the plaintiffs attended church services.
In constructing the shed, the plaintiffs tore down a hitching post which had been set by the
defendant to tether his horse during services. The defendant then tore down that part of the
plaintiffs' shed which stood within the highway limits. The plaintiffs brought an action for
damages. The trial court granted nonsuit for the defendant because the plaintiffs' shed had
been constructed in the right-of-way. The plaintiffs appealed.

The Wisconsin court, relying on Larson, found that a private individual has no
right
to abate a public nuisance unless the nuisance obstructs his individual right. 59 Wis. at 53.
The court observed: "The shed in question was scarcely a public nuisance, because it did not
impede or incommode the lawful use of the highway by the public. It was rather a mere
encroachment upon the right of way, as distinguished from an obstruction of the way, which
is a nuisance." 59 Wis. at 53. Therefore, the court found that the nonsuit was erroneous and
reversed the trial court.

Kansas Cases

In 1874 in a Kansas civil trespass case, Willis v. Sproule, 13 Kan. 257 (1874),
the
defendants cited the Wisconsin case, Williams v. Fink, to support their position that
they
were not liable in trespass for removing the plaintiff's fence which crossed a public road and
obstructed traffic. Relying on Williams, the defendant argued that "[a]ny person who
wishes
to use a highway which is unlawfully obstructed, may remove such obstruction whether he
be an officer or not." 13 Kan. at 263. The Willis court agreed,
holding the defendant's "act
done was the removal of an obstruction from a road so that the road could be traveled, and
this any person had a right to do whether he was an officer or not." 13 Kan. at 268.

State v. Stark, 63 Kan. 529, 66 Pac. 243 (1901), applied civil nuisance law to
a criminal
charge. In that case, Stark was charged with malicious trespass of a saloon. Stark, with Carrie
Nation and others, broke open the door and windows of a building to destroy intoxicating
liquors. When charged, Stark asserted that his actions were justified because intoxicating
liquors inside the building had been declared a public nuisance. The court quoted a
Massachusetts case, Brown v. Perkins and wife, 12 Gray 89, where Chief Justice
Shaw had
stated:

"'It is not lawful by the common law for any and all persons to abate a common
nuisance, merely
because it is a common nuisance, though the doctrine may have been sometimes stated in terms so
general as to give countenance to this supposition. This right and power is never entrusted to
individuals in general, without process of law, by way of vindicating the public right, but solely for
the
relief of a party whose right is obstructed by such nuisance.' (Page 101.)

"'The true theory of abatement of nuisance is that an individual citizen may abate a
private nuisance
injurious to him, when he could also bring an action; and also, when a common nuisance obstructs
his
individual right, he may remove it to enable him to enjoy that right, and he cannot be called in
question for so doing. As in the case of the obstruction across a highway, and an unauthorized
bridge
across a navigable watercourse, if he has occasion to use it, he may remove it by way of
abatement. But
this would not justify strangers, being inhabitants of other parts of the commonwealth, having no
such
occasion to use it, to do the same. Some of the earlier cases, perhaps, in laying down the general
proposition that private subjects may abate a common nuisance, did not expressly mark this
distinction; but we think, upon the authority of modern cases, where the distinctions are more
accurately made, and upon principle, this is the true rule of law.' (Pages 101, 102.)

"'The keeping of a building for the sale of intoxicating liquors, if a nuisance at all,
is exclusively a
common nuisance; and the fact that the husbands, wives, children or servants of any person do
frequent such a place and get intoxicating liquor there does not make it a special nuisance or
injury to
their private rights, so as to authorize and justify such persons in breaking into the shop or
building
where it is thus sold, and destroying the liquor there found, and the vessels in which it may be
kept;
but it can only be prosecuted as a public or common nuisance in the mode prescribed by law.'
(Page
102)" 63 Kan. at 535-36.

The Stark court found that Chief Justice Shaw's holding in Brown
was consistent with
text authorities on the subject. In concluding that Stark had acted outside the law in breaking
down the door and windows of the building to destroy intoxicating liquors, the court noted:
"A fence across a public road is a common nuisance which a person journeying along the
highway may legally abate by removing the obstruction. This is so because his progress is
impeded and particular injury is sustained by him not shared in by the community
generally." 63 Kan. at 536.

Duty of the County

In arguing its criminal action against the defendant, the State asserted the County by
an informal agreement exercised its police power by allowing abutting landowners to
maintain public roads. Does the County have authority to informally designate abutting
landowners authority to maintain low maintenance county roads?

We note that it is the statutory "duty of the board of county commissioners of each
county to maintain its county roads only along the true course of any such road, as originally
laid out or subsequently officially altered, and, when necessary, to cause the county surveyor
to take such corrective action as may be necessary to maintain the true course of the road,
keep the same in repair, and remove or cause to be removed all obstacles that may be found
therein." Gronniger v. Board of Doniphan County Comm'rs, 6 Kan. App. 2d 642,
645, 631
P.2d 1252, rev. denied 230 Kan. 817 (1981).

The road surveyor employed by Trego County to survey the right-of-way testified
that although there was sufficient room for two vehicles to pass in the uncultivated areas of
the road, the wheat cultivation south of the road came up to and at places crossed the center
line of the road, and cultivation north of the road came to and at places crossed the center line
of the road. We note that by statute, the county engineer or township trustee is charged with
maintaining the true course of a county road and "shall keep the same in repair, and remove
or cause to be removed all obstructions that may be found therein." K.S.A. 1998 Supp.
68-115(a).

In fulfilling the duty to maintain the true course of a county road and to repair and
remove or cause to be removed all obstructions upon that county road, the county
engineer is
the "agent of the board of county commissioners." Gronniger, 6 Kan. App. 2d at
644. The
County has no statutory authority to informally designate others as its agent to maintain
county roads.

PUBLIC NUISANCE PER SE

A public nuisance is an unreasonable interference with a right common to the general
public, such as a condition dangerous to health, offensive to community moral standards, or
unlawfully obstructing the public in the free use of public property. Black's Law Dictionary
1095 (7th ed. 1999).

Relying on Eble v. State, 77 Kan. 179, 93 Pac. 803 (1908), and City of
Emporia v.
Humphrey, 132 Kan. 682, 297 Pac. 712 (1931), the district judge found that the wheat
growing
on the road was a nuisance per se, justifying Deines' removal of the wheat by way of
abatement. Where the trial court has made findings of fact and conclusions of law, the
appellate court's review is to determine whether the findings are supported by substantial
competent evidence and whether the findings are sufficient to support the trial court's
conclusions of law. Substantial evidence possesses both relevance and substance and furnishes
a substantial basis of fact from which the issues can reasonably be resolved. Substantial
evidence is legal and relevant evidence as a reasonable person might accept as being sufficient
to support a conclusion. State v. Haskins, 262 Kan. 728, 731, 942 P.2d 16 (1997).

In Eble, this court found that a private individual could not obtain title to a
public
highway by adverse possession. In that context, it was stated that an obstruction to the
public use of a highway is a continuing nuisance and that no equities in favor of a person
committing such a nuisance can be founded upon the acquiescence of the highway or other
officials. 77 Kan. at 179, Syl. ¶ 4. The Humphrey court found that the city has
authority and
a duty to abate an encroachment on a street. A permanent encroachment on a public street
for a private purpose constitutes a nuisance per se and a purpresture. 132 Kan 682, Syl. ¶
2.

The State contends that the home rule powers informally exercised by Trego County
were pursuant to its police powers. Police powers are generally defined as those which are to
protect the health, safety, or welfare of the public. See e.g. State ex rel Schneider v.
Ligett, 223
Kan. 610, 615, 576 P.2d 221 (1978).

Eble and Humphrey state that it is the duty of the government to
remove
encroachments or obstructions by abatement. The issue here is whether a private
individual
who abates an obstruction or encroachment upon a public right-of-way may be convicted of
criminal damage to property.

Clearly, Kansas case law dating back to the late 1800's establishes a well-articulated
principle of law that where there is an obstruction across a public right-of-way which
obstructs the travel of an individual, the obstruction is a nuisance per se, and the affected
individual may remove the obstruction by way of abatement. The district judge found that
wheat growing in the public right-of-way was an obstruction and a nuisance per se. The
judge concluded as a matter of law that Deines' mowing of another's wheat growing upon the
public right-of-way did not constitute the crime of criminal damage to property. Under these
circumstances, the trial court did not err in dismissing the State's criminal action against
Deines.